Analyse the extent to which judges are able to develop the law through the operation of the doctrine of judicial precedent and the interpretation of statutes. Discuss whether judges should be able to develop the law.

PLAN
Judicial Precedent / 1.  Original, Hierarchy, Stare Decisis – Case examples
2.  Persuasive, Obiter, Dissenting – Case examples
3.  Reversing, R v Kingston
4.  Distinguishing, Balfour vs Merritt
5.  Overruling, Practice Statement, case examples
6.  CA, special rules, Why?, Lord Denning, Case examples
Statutory Interpretation / 1.  Literal Rule, Fisher v Bell
2.  Golden Rule, R v Allen
3.  Mischief Rule, DPP v Bull
4.  Purposive Approach, Factortame, Gillick, RCN v DHSS
5.  Human Rights Act (external aid), R vA, R v G (2008), current issues
For and Against judges developing the law / 1.  For, flexibility, practical, reflect social issues, consider each case in detail
2.  Against, Parl supremacy, not elected, retrospective nature, no consultation, reactive, hasty decisions
3.  Case examples
Conclusion / Have judges got balance right? Is approach clear?

Starting sentences:

1.  One way judges can develop the law...

2.  This is defined as...

3.  An example of this is...

4.  The benefit of judges developing the law is...

5.  The potential problem for judges developing the law in this way is..

Don’t forget:

1.  Use at least two quotes from judges and explain them

2.  Use at least two theorists’ points of view

3.  Think about benefits and problems from the point of view of the D, V, potential V’s and D’s, the public as a whole.

Example paragraph – reversing to develop the law

One way judges can develop the law through precedent is reversing, where lower courts mistakes can be rectified by higher courts, in the same case. Often trial judges have to interpret laws which are not clear for unusual situations. So in the common law defence of Intoxication the trial judge erred in law in the case of Kingston when not allowing the defence of vol intoxication to go to the jury for a specific intent crime. K appealed to the CA who were able to develop the law by stating that for specific intent crimes the jury must be allowed to consider the D’s defence, reversing the judges mistake. However the P appealed to the HL on the basis that even though the jury should hear the defence just because it was involuntary intoxication did not mean D could still not form the MR of the offence. The HL agreed and reversed this part of the CA decision allowing the courts to develop and just approach to involuntary intoxication that allows the D to raise the defence but to protect society from those individuals who can still form the MR of the crime, with the court stating a ‘drugged intent is still and intent’. However, reversing can be slow, for example in R v Kennedy, the appeal process took 10 years whilst the D was in prison, and on contentious matters perhaps are better dealt with by parliament in terms of consultation and legislative reform, for example the Butler committee in 1975 suggested a separate offence for intoxication indicating that public policy is at odds with judicial development of this defence.

Example paragraph – Literal rule

The literal rule can be seen as one that follows the plain ordinary natural meaning of the words in an act using only the act itself (internal aids) and the OED of the time the Act was made to interpret the law and apply it to the current case. In Lord Simmond’s view judges should not be entering into a ‘voyage of discovery’, even where the drafting of the act, in Whiteley v Chappell for example, meant an absurd decision saying a person was not guilty of impersonating a voter simply because the voter was dead. Clearly literal rule judges believe law should be created by parliament, which ties in the view of Lord Esher, who argued that ‘judges do not make law’. Such judges argue for a very clear distinction in roles following the doctrine of the separation of powers where parliament make and develop law whilst judges apply it, regardless of absurdity. This view is supported by the US philosopher Ronald Dworkin on the basis that matters of public policy can only be properly resolved through the democratic and consultative processes that parliament have available to them, after all judges are not elected and have no methods of consultation before passing judgment.